Modifications of Support Orders Under California’s Emergency Rules

April 28, 2020 – AlertsBy Casey McNamara

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Marital dissolution proceedings in California often include orders for child support or spousal support, which can later be modified in certain cases when an individual experiences a "material change of circumstance."

The economic fallout from the COVID-19 pandemic has likely caused material changes to many parties' circumstances, such as job losses and reduced wages.

Under an Emergency Rule adopted April 20 by the California Judicial Council in an effort to provide individuals with relief as close as possible to their loss of income and account for changes in court operations, support orders can now be modified retroactively to the date an individual mails their request for relief to the other party.

Background on Support Orders

Support orders may be made prior to the entry of a judgment or as part of a judgment dissolving a marriage. Child support orders are modifiable if there has been a material change of circumstance since the prior order was made. Spousal support orders are also modifiable if there has been a material change of circumstance since the prior order was made, unless the parties have expressly agreed that a spousal support order cannot be modified regardless of any change of circumstance. A material change of circumstance is a change that affects the need for support or the ability to pay support. For child support this could include a change in the custody schedule, a change in the payor’s income, or a change in the payee’s income. For spousal support, it could include a change in the payor’s income, a change in the payee’s income, or a change in the payee’s need for support.

The COVID-19 pandemic and the resulting state and local shelter-in-place orders have undoubtedly resulted in a material change of circumstance for many people with existing support orders, which may be modified to address their current circumstances. Child support is generally determined by a formula based on each party’s income and custodial time. Spousal support is generally determined by a number of factors, with the income or earning capacity of each party being among the most important. For both child support and spousal support, a change in income of either party may warrant a modification of the monthly support amount. For example, if the payee’s income has decreased, he or she may be entitled to additional monthly support. Likewise, if the payor’s income has decreased, he or she may be entitled to a reduction in the monthly support payments.

Response to the Pandemic

Prior to April 20, 2020, an order modifying child or spousal support could only be made retroactive to the date a request for an order to modify support was filed with the court and formally served on the other party or, in some cases, the other party’s attorney. Recognizing many people will need to modify support orders but that emergency changes to court operations have made it challenging to file a request with the courts, the California Judicial Council adopted Emergency Rule 13 on April 20, 2020. Under Emergency Rule 13, the court has the discretion to make an order modifying a prior support order retroactive to the date the request is mailed to the other party. The purpose of the rule is to make sure people whose jobs have been affected by the COVID-19 pandemic can get relief as close as possible to their loss of income.

Although Emergency Rule 13 gives the courts discretion to modify a support award retroactive to a date prior to the filing of the request, it does not obviate any of the other requirements for seeking a request for an order modifying support. The papers mailed to the other party must include the request and supporting papers required by the California Rules of Court, including a supporting declarations and other documents.

Whether you are the payor or payee of a support order, if your income has been reduced due to the COVID-19 pandemic, we recommend you contact an attorney to discuss whether a modification of the support order is appropriate, and, if so, the best course of action to obtain relief.